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Comment Period Closes Today for Proposed Rule to Consider Economic Impacts Under Endangered Species Act

October 23, 2012

The comment period will close today on a new proposed rule that dictates the extent to which the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively the Services) are able to consider economic impacts when they publish a proposed rule to designate critical habitat under the Endangered Species Act (ESA).  Under the ESA, critical habitat is essential habitat of listed species.  Designation of an area restricts activities that can occur on the land that are likely to destroy or adversely modify habitat.

The proposed rule requires the Services to complete and make available for public comment an economic analysis when they publish a proposed rule to designate critical habitat under the ESA.  Publication of the economic analyses used in making critical habitat designations at the time of rule making would allow the public greater opportunity to comment on the impacts considered.

More importantly, the rule narrows the economic impacts that may be considered when designating critical habitat.  The proposed rule adopts the Ninth Circuit Court of Appeals’ “baseline approach.” Under this approach, the Services may only consider incremental economic impacts from a critical habitat designation — that is, those impacts beyond those resulting from the species’ listing. This approach reduces the impacts considered during the critical habitat designation and is likely to allow for broader critical habitat designations.

The proposed rule chooses between conflicting court opinions issued in the last several years by the 10th and 9th Circuits, and is the result of a February 2012 memorandum from the President directing the Secretary of the Interior to revise the regulations implementing the ESA to include early release of an economic analysis.

For additional background, including how to comment on the proposed rule, click here.

If you have any questions, please contact me at MNash@dunncarney.com

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